When facing the measures envisaged by the Code of Crisis and Business (so-called CCII), companies in crisis or in a state of insolvency normally have significant tax and social security debts, which they have to request to be reduced.
The tax transaction pursuant to art. 63 CCII is the main measure to allow the debtor to partially pay his taxes. However, it could not find application in the context of the negotiated settlement of the crisis, where it would be possible to obtain only the mere reduction of penalties and interest, nor tout court within the simplified arrangement pursuant to art. 25 sexies CCII.
Unlike the tax transaction where the Tax Authority is called to express its opinion on the composition proposal, in the simplified composition the proposal is not subject to a vote by the creditors.
Nonetheless, it cannot be trenchantly excluded that the reduction of tax debts is precluded in the simplified arrangement, since the tax claim is unavailable only where the law does not provide otherwise. Instead, it is known that the possibility of reducing tax debts was envisaged even before the introduction of the tax settlement and therefore, a derogation from the principle of unavailability of tax debts is to be found not only in the provisions concerning the tax settlement, but also in those , like the rules concerning the simplified arrangement, allow in themselves to partially satisfy all debts, even preferential ones, due to the debtor’s crisis.
However, the reduction of tax debts in the context of the simplified composition with creditors is possible on condition that: a) the negotiations were carried out correctly and in good faith in the context of the negotiated composition; b) the alternative solutions envisaged by art. are not feasible. 23 c. 1 and 2 lett. b of the CCII (i.e. debt restructuring agreements); c) the composition proposal complies with the order of legitimate pre-emption causes; d) the proposal does not cause damage to the Treasury with respect to the alternative of judicial liquidation and in any case ensures its utility.
This has been confirmed in a recent ruling by the Court of Bergamo (23/09/22), which, in reiterating the residual nature of the measure of the liquidation agreement, declared the appeal presented by the debtor inadmissible, on the assumption that in the present case, at the outcome of the negotiated settlement, the measure of the tax transaction could be used as a preliminary step.
Although the reasoning examined by the Court of Bergamo leaves no doubts on the procedure that the company in crisis should follow in the event of a negative outcome of the negotiated settlement, i.e. propose a tax settlement and only in the event of an unfortunate outcome submit an application for a simplified arrangement, the reasons which in the present case had prompted the debtor to directly implement the measure provided for by art. 25 sexies CCII were to be found on the landings of the negotiated settlement carried out.
Indeed, in his final report, the Expert, acknowledging the efforts made by the parties to profitably conclude the process before him, stated that it was not possible to present the debtor with an application for approval of a restructuring agreement, since it was already clear the lack of consent of the creditors.
For these reasons, the request for an extension of the duration of the settlement was not made and the Negotiator offered the debtor access to the measure provided for by art. 63 CCII or, alternatively, to that referred to in art. 25 sexies CCII.
Since the request for a tax transaction would have risked making the peremptory term established by law for the proposal of the simplified liquidation agreement expire in vain, also taking into account the high probability of disagreement by the creditors with the relative proposal, the debtor opted for the alternative of liquidation agreement.
Having taken note of the decision of the Court of Bergamo, the company in crisis will evaluate the re-proposition of the request for a negotiated composition within the statutory term with activation of the tax settlement on the side, in order to save the terms for the re-proposition of a new application for a simplified composition with creditors .
Mariaines Marangelli